BSA granted four-year extension to complete 63-unit building after City conceded that developer could correct noncompliant plans.In May 2004, Buildings issued developer GRA V LLC excavation and foundation permits for a 63-unit residential building at 3329 Giles Place in the Van Cortlandt Village section of the Bronx. GRA V began excavating the site and pouring the foundation for its proposed six-story building. In September 2004, before GRA V completed the foundation, the City approved the Van Cortlandt Village rezoning plan. 1 CityLand 4 (Oct. 15, 2004). The plan rezoned the project site from R6 to R4A, rendering the proposal out-of-compliance with the zoning resolution.

GRA V applied to BSA to complete the project. Buildings objected, arguing that the foundation permit was invalid because the submitted plans showed the foundation walls penetrating a required1.9- foot setback from the lot line. GRA V claimed that it could amend its plans and build a complying building. BSA agreed with Buildings and denied GRA V’s vested right claim because it lacked a valid permit.

A lower court and the First Department upheld BSA’s determination. However, at the Court of Appeals, the City requested a remand to BSA after conceding that Buildings had allowed developers to correct plans following rezonings. If GRA V could, in fact, amend its plan to develop a complying building, BSA should have the opportunity to determine whether GRA V could meet the requirements for a common law vested right claim. The Court of Appeals agreed and sent the matter back to BSA. 6 CityLand 97 (July 15, 2009).

GRA V returned to BSA and obtained a determination from Buildings stating that all non-compliances related to the permit had been resolved. At BSA, GRA V initially claimed that it had completed 85 percent of the building’s foundation and expended $475,000 of the project’s $8.6 million budget. GRA V further claimed that a complying project would result in a potential loss of $592,800 in rental income a year because it would be limited to building four detached homes with a total of eight apartments.

The Fort Independence Park Neighborhood Association and elected officials including local Council Member G. Oliver Koppel, State Senator Gustavo Rivera, and Assembly Member Jeffrey Dinowitz opposed the project. The opposition argued, among other things, that GRA V had not substantially completed the building’s foundation, and that it had not adequately supported its expenditures on the project. The Neighborhood Association also argued that GRA V acted in bad faith because it was aware of the impending rezoning and attempted to “beat the clock” and complete the project’s foundation prior to the rezoning’s approval.

Representatives from the Neighborhood Association testified that GRA V overestimated how much of the foundation had been completed by including portions of the foundation that protruded into the required setback area. At the direction of BSA, GRA V revised its calculations by excluding the concrete poured beyond the 1.9-foot setback, and estimated that it had completed 74 percent of the project’s foundations. GRA V also submitted an affidavit from the project’s contractor stating that he was unaware of the impending Van Cortlandt Village rezoning when he pre-filed the building plans in 2004.

BSA granted GRA V a four-year extension to complete the project. After establishing that GRA V had a valid permit, BSA found that the developer had performed a significant amount of work on the project site, and agreed that a reduction of 55 rental units would result in a serious loss to the developer.